Probate in Delaware: A Complete Guide

Delaware is famous for its trust and corporate law, but for most families, its probate process is refreshingly straightforward: no state estate tax, a Register of Wills office in each county, and a small estate option that skips court filing entirely for modest estates. Here's the full picture.

Does Delaware Always Require Probate?

No. Assets held in a revocable living trust — Delaware is one of the leading trust jurisdictions in the country — accounts with payable-on-death or transfer-on-death designations, life insurance and retirement accounts with named beneficiaries, joint tenancy property with right of survivorship, and tenancy-by-the-entirety property for married couples all pass outside of probate.

The Delaware Register of Wills

Each of Delaware's three counties — New Castle, Kent, and Sussex — has a Register of Wills office that handles the administrative side of probate: admitting wills, qualifying personal representatives, and recording inventories and accounts. The Court of Chancery handles will contests and other disputes, but the large majority of Delaware estates never need it.

Small Estate Affidavit ($30,000)

If the estate's personal property totals $30,000 or less (12 Del. C. § 2306), an heir can use a Small Estate Affidavit starting 30 days after death. The affidavit is presented directly to the banks, insurers, or other institutions holding the assets — there's no court filing required at all, making this the fastest path available in Delaware.

How to Open Probate in Delaware

1. File the original will and a Petition for Probate with the Register of Wills in the county where the deceased was domiciled.
2. The Register admits the will and qualifies the personal representative — often the same day, or within a week for routine filings.
3. Receive Letters Testamentary (if there's a will) or Letters of Administration (if there isn't), giving you legal authority over the estate.

Personal Representative Compensation in Delaware

Delaware does not set a statutory percentage for personal representative compensation. Under 12 Del. C. § 2305, commissions are "allowed as provided by rule of the Court of Chancery" — specifically Court of Chancery Rule 192, which directs the court to review requested commissions for reasonableness rather than apply a fixed formula. Factors the court weighs include the time spent, the estate's size and complexity, the skill required, any compensation terms in the will, and rates charged for comparable work. In practice, commissions for individual (non-corporate) personal representatives typically fall in the 2–4% of estate value range, though the court can approve more or less depending on the circumstances.

Creditor Claims in Delaware

The personal representative must give notice to creditors. Claims against the estate are barred unless presented within 8 months of the decedent's death (12 Del. C. § 2102) — one of the longer creditor windows in the country, whether or not formal notice was given. If a claim is rejected, the creditor generally has only 3 months from that rejection to sue on it.

Delaware Has No State Estate or Inheritance Tax

Delaware repealed its state estate tax for deaths on or after January 1, 2018, and it does not have a separate inheritance tax. Only the federal estate tax can apply to a Delaware estate, and as of 2026 the federal exemption is $15 million per person — so the large majority of Delaware estates owe no estate tax of any kind.

Intestacy in Delaware

If there is no will, 12 Del. C. § 502 governs distribution to a surviving spouse:

• All surviving descendants are also the spouse's: Spouse takes the first $50,000 of personal property, plus 1/2 of the balance, plus a life estate (not outright ownership) in any intestate real estate.
• One or more descendants are not the spouse's: Spouse takes 1/2 of the personal property, plus a life estate in the real estate.

The portion not passing to the spouse goes to the decedent's descendants, per stirpes.